Change Poster
The AP is threatening to sue Shepard Fairey over his famous "Change" poster. Apparently, it is news that he based the image off of a photograph. Like many things on the internet, lots of people have strong opinions about this based on nothing whatsoever.
I thought I'd add some facts, observations and opinions of my own.
I thought I'd add some facts, observations and opinions of my own.
- The poster is not a photograph and has not been altered in Photoshop with a simple click of a mouse, as people on the internet who know absolutely nothing about Photoshop are claiming. It is a new illustration based on a photograph that was most likely created in Illustrator.
- Some people are defending him on the basis that he didn't make money off of it. It doesn't matter either way. You are allowed to profit off of your own work, which this is. You are also allowed to make derivative works, which this could be considered. Marcel Duchamp famously drew a mustache, goatee and caption on the Mona Lisa and created something different with an entirely new context. (In this case mocking fine art and its rich admirers.)
- The photographer and the AP deserve no credit or compensation. He should mention it is based off of a photograph only when talking about the creative process of the piece. (Fairey has done this even though it's self-evident he used a photograph.)
- These types of things have been hashed out in the art world and in courts for quite a while. His work clearly and squarely falls into the category of fair use. Any lawsuit would be completely frivolous.
posted by Matt Bors at
12:35 PM
7 Comments:
This seems like a good place to plug Lawrence Lessig's book "Free Culture", which you can download for free in a variety of formats http://www.free-culture.cc/ or buy http://www.amazon.com/Free-Culture-Nature-Future-Creativity/dp/B000BNPG46/ref=ed_oe_p_bargain
A must-read. He talks a lot about fair use and how it is being eroded at the behest of corporate interests.
I disagree with the part of your analysis concerning derivative works. The right to create derivative works vests with the copyright holder of the original work. See 17 USCA 106(2).
In this case the original work is the photograph. No one disputes that AP owns holds the copyright of the photograph; accordingly, the right to make derviate works vests with AP.
If the poster is only derivative work; then the poster infringes the AP's copyright.
The comparision to Duchamp is imperfect because the work in that case (the mona lisa) was in the public domain; no one asserts that the AP photograph is in the public domain.
This comment has been removed by the author.
You are right about it being imperfect.
But the Change poster does not reproduce a single pixel from the AP photograph. It is a NEW illustration (unlike Duchamp) and only used the photo as a base. They've got no case.
I think the kind of attorneys that the AP can afford to hire can put together a non-trival case:
With regard to your observation that the poster "does not reproduce a single pixel", that is not sufficient to establish that it is not a derviative work. There is plenty of case law suggesting that a defendant can infringe via derivative work without ever reproducing a single portion of the copyrighted work. e.g Nat'l Geographic v. Classified 27 F.Supp 655.
Moreover, a derivative work is defined (in part) as a work based upon a preexisting work. 17 USC 101. Your observation, and the artis's ackknowledgement, that the poster used the photo as a base is evidence in favor of a finding that it is a derviative work.
Because there are non-trivial arguments to be made that the work is a derviative work, the factors regarding fair use (lack of commercialization, etc.) are quite relevant and will probably be considered at length before all is said and done
I'm sure they could put together a good legal team to make an argument but I have a real hard time believing they can win this one. Any competent lawyer should be able to defend Fairey with concept of "Transformativeness."
AP's now hackneyed copyright infringement threats indicate that they must be desperate for a new income stream. Don't forget that AP also recently attempted to sue bloggers for their fair use citations of AP material. When they couldn't figure out how to efficiently sue all of them, AP attempted to negotiate a settlement with a 'bloggers association' that no bloggers had ever heard of, much less had subscribed to. When that didn't work, they gave up.
AP needs to fire their legal advisers. The damage they are causing to the image of AP will diminish the future earnings of AP much MUCH more than the loss of income from some perceived copyright violations.
Post a Comment
Subscribe to Post Comments [Atom]
<< Home